Miller v. Miller

• Decision Date: 05 February 1945
• Docket Number: 39050
• Parties: Earnest E. Miller v. Walter R. Miller, Esther A. Miller, James Thomas Miller, Jessie Fred Miller, Nellie A. Brittain, Effie Dennis, Edward Miller, Harley Owens, Harley Owens, Guardian and Curator of the Estate of Robert Jack Owens, a Minor, Robert Jack Owens, Individually, James Mantlo, Edna Golden, Opal Golden, Frances Golden, Ruth Mantlo, Grace Vanderpool and Martha Gale Mantlo, a Minor, Defendants, and Walter R. Miller and Esther A. Miller, Appellants
• Court: Missouri Supreme Court

184 S.W.2d 1011

353 Mo. 884

Earnest E. Miller v. Walter R. Miller, Esther A. Miller, James Thomas Miller, Jessie Fred Miller, Nellie A. Brittain, Effie Dennis, Edward Miller, Harley Owens, Harley Owens, Guardian and Curator of the Estate of Robert Jack Owens, a Minor, Robert Jack Owens, Individually, James Mantlo, Edna Golden, Opal Golden, Frances Golden, Ruth Mantlo, Grace Vanderpool and Martha Gale Mantlo, a Minor, Defendants, and Walter R. Miller and Esther A. Miller, Appellants

No. 39050

Supreme Court of Missouri

February 5, 1945

Appeal from Mercer Circuit Court; Hon. Virgil C. Rose Judge.

Affirmed.

W S. Thompson and John E. Powell for appellants.

(1) Title to real estate is directly involved in this action thereby vesting appellate jurisdiction in this court. Cunningham v. Cunningham, 30 S.W.2d 63, 325 Mo. 1161; Park v. Park, 259 S.W. 417; Hudler v. Muler, 55 S.W.2d 419; DeHarte v. Ruenpohl, 108 S.W.2d 357, 341 Mo. 749. (2) This being an equitable action is triable de novo here. The rule that this court will defer largely to the finding of the trial chancellor is therefore inapplicable here. Jones v. Peterson, 72 S.W.2d 76, 335 Mo. 242; Noell v. Remmert, 30 S.W.2d 1009, 326 Mo. 148; Krug v. Bremer, 292 S.W. 702, 316 Mo. 891. (3) The undisputed evidence in this case clearly establishes a deed of conveyance, for a valuable consideration therein recited, which consideration was applied upon debts of the grantor and liens upon the real estate conveyed. Wood v. Broadley, 76 Mo. 23; Wiessenfels v. Lewis, 208 Mo. 515; Yates v. Burt, 161 Mo.App. 267, 143 S.W. 73; McCartney v. Finnell, 106 Mo. 445; Haydon v. Railroad Co., 222 Mo. 126; Hollocher v. Hollocher, 62 Mo. 267. (4) The intention of the grantor was to pass title to the grantees, plain and unamiguous, to Walter R. Miller and Esther A. Miller, husband and wife, in the entirety. McAlister v. Pritchard, 287 Mo. 494, 230 S.W. 66; Hobbs v. Yeager, 263 S.W. 225; Inlow v. Herron, 267 S.W. 893, 306 Mo. 42; Donaldson v. Donaldson, 278 S.W. 686; Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72; Norman v. Horton, 126 S.W.2d 187; White v. Kentling, 134 S.W.2d 39; Leeper v. Leeper, 147 S.W.2d 660. (5) Incompetency of witness is waived unless taken at first opportunity, or if examined on new matter not brought out in chief. McCune v. Goodwillie, 204 Mo. 306, 102 S.W. 997; Hume v. Hopkins, 140 Mo. 65, 41 S.W. 784; Robertson v. Energy Constr. Co., 294 S.W. 426; Milburn v. Robinson, 132 Mo.App. 198; Eberhardt v. Stephenson, 128 Mo.App. 476, 481, 106 S.W. 1118.

Rex H. Moore and P. M. Marr for respondent.

(1) While this is an action in equity and the hearing in the Supreme Court is de novo, the rule is that substantial weight is given to the finding of the chancellor. Wright v. Brown, 177 S.W.2d 506; Niehaus v. Madden, 348 Mo. 770, 155 S.W.2d 141; Williamson v. Frazee, 294 Mo. 562, 242 S.W. 958. (2) An agreement by the grantee to assume an obligation of the grantor constituting a lien on the land is a sufficient basis for declaring a deed absolute to be a mortgage. Bemrod v. Heinzelman, 263 S.W. 951. (3) There were circumstances constituting indicia of a mortgage. L.R.A. 1926B, p. 283, sec. 128. (4) Parol evidence is admissible to prove that a deed absolute on its face is a mortgage. Brightwell v. McAfee, 249 Mo. 562; Cobb v. Day, 106 Mo. 278; Cornell v. Hall, 22 Mich. 377. (5) Declarations before and at the time are admissible as showing intent. Brightwell v. McAfee, 249 Mo. 562. (6) When the transaction had its inception in an application for a loan, the courts are inclined to scrutinize it closely and hold it a mortgage, unless it clearly appears that the parties changed their minds afterward. Williamson v. Frazee, 294 Mo. 320, 242 S.W. 958; L.R.A. 1916B, sec. 134, p. 300. (7) Declarations made by a party to a deed, or letters or other written admissions by him, after the execution of the deed, are competent against him to show that the deed was intended as a mortgage notwithstanding its form. 41 C.J., sec. 109, pp. 343, 344; L.R.A. 1916B, sec. 140a, p. 319.

OPINION

Ellison, P.J.

This is an action to partition 531 acres of land in Mercer county among the heirs of Robert Miller, who died intestate December 5, 1938. The suit was brought in July, 1942. The plaintiff-respondent, Earnest E. Miller is one of the sons and heirs of the decedent, having an undivided one-ninth interest in his land and estate. The defendants who did not appeal likewise are heirs, having undivided interests ranging from one-ninth to one-sixty-third. The defendant-appellant Walter R. Miller is another son and heir of the deceased, and the defendant-appellant Esther A. Miller is his wife.

The land consists of three tracts, the first ^[1] containing 147.87 acres; the second, ^[2] 270 acres; and the third, ^[3] 113 acres. About a year before his death the deceased, then over 80 years old, conveyed the first tract by warranty deed recorded in book 88, page 385, of the land records of the county to the appellants Walter R. Miller and wife as tenants by the entirety. The first count of the petition alleges this deed was in fact a mortgage and seeks a decree so declaring and vesting title in the heirs of the decedent, subject to the aforesaid mortgage lien of the appellants and an equitable lien in favor of the defendant Jessie Fred Miller for money advanced in the sum of $ 1141. The second count prays an accounting of the rents and profits of said first tract during the four years from 1939 to 1942 while appellants were in possession. The third count prays partition of the three tracts between the parties according to their several interests.

The chancellor rendered a decree in favor of the plaintiff-respondent on all three counts. Appellants state in their brief that they are contesting only the part of the decree covering the first and second counts, namely the part holding the deed to appellants covering the first tract was only a mortgage, and requiring them to account for the rents and profits therefrom.

The warranty deed was dated November 23, 1937, and was made for a recited consideration of $ 2000. It was acknowledged December 29, 1937 and filed in the Recorder's office on January 3, 1938 at 11:45 a.m. The appellant grantees in said deed executed a deed of trust dated December 1, 1937, covering the same land, to a trustee for the Farmers State Bank of Princeton in Mercer county, securing the payment of their promissory note for $ 2200, due December 1, 1942. This deed of trust was acknowledged on January 3, 1938 -- the same date that the warranty deed was acknowledged. It was filed in the Recorder's office on that day at 11:55 a.m., ten minutes after the warranty deed had been filed.

There is little dispute about the facts attending the practically contemporaneous execution of the warranty deed and deed of trust. The 147 acre tract was clear of mortgages but heavily encumbered with drainage taxes, and the deceased father at one time had been indebted to the bank in the sum of $ 3300 on personal notes, backed only by his financial statement. This indebtedness was in process of reduction as the grip of the economic depression relaxed, but amounted to $ 3000 at the time of the events here involved. Hubert Fuller, president of the bank and also a lawyer, testified the father and the appellant Walter Miller had consulted him about obtaining funds to pay the delinquent drainage taxes, having also in view the fact that the last drainage bonds would mature in 1938, when the district could be fully liquidated and further taxation would probably end.

Mr. Fuller was averse to accepting a note secured by a five year mortgage on the tract signed by the father alone, because he was 80 years old and his expectancy did not promise that he would live to the maturity of the loan. So he suggested that all the children sign with the father, or that the land be conveyed to one of them who, in turn, could borrow the money. In his opinion the tract was worth $ 30 per acre or $ 4400, and the drainage taxes aggregated about $ 2200 thereby making the debt 50% of the security, which was sound on a banking basis. The bank cashier, Mr. Coon, thought the land was worth $ 35 per acre, or more than $ 5000.

The appellant Walter Miller later came to the bank alone, Mr. Fuller testified, and requested that a warranty deed be prepared, running from the father to him and his wife as tenants by the entirety. Still later he brought the father in and Mr. Fuller had the deed drawn by a typist in the bank, giving her an outline of the facts and perhaps even suggesting that a tenancy by the entirety be conveyed. About the same time, the note and deed of trust from appellants Walter Miller and wife to the bank were written. All these were executed in Mr. Fuller's office. After he signed the warranty deed, the father said, "This will fix it so we can get that loan and pay the drainage tax." Being asked on cross-examination whether the warranty deed was made to Walter Miller for the purpose of obtaining a loan, Mr. Fuller answered, "Well of course I couldn't say absolutely, all I can say is that they talked about getting a loan."

It is conceded that the bank account of the appellant Walter Miller, not the father's, was credited with the $ 2200 advanced on the note and deed of trust; that he paid the note in full and the deed of trust was released of record on November 24, 1942; and that on January 3, 1938, he paid the amount of $ 2200 in full of all delinquent taxes then due on the tract by his check drawn on the bank. This was the date on which the warranty deed and deed of trust were recorded.

Mr Fuller further testified that after the death of the father he had several conversations with the appellant Walter Miller relative to the latter's deeding...